People v. Lopez

• Decision Date: 02 November 1998
• Docket Number: No. S064118,S064118
• Citation: 965 P.2d 713,19 Cal.4th 282,79 Cal.Rptr.2d 195
• Parties: , 965 P.2d 713, 98 Cal. Daily Op. Serv. 8129, 98 Daily Journal D.A.R. 11,317 The PEOPLE, Plaintiff and Respondent, v. Caesar Augustus LOPEZ, Defendant and Appellant
• Court: California Supreme Court

Page 195

79 Cal.Rptr.2d 195

19 Cal.4th 282, 965 P.2d 713, 98 Cal. Daily Op. Serv. 8129,

98 Daily Journal D.A.R. 11,317

The PEOPLE, Plaintiff and Respondent, v. Caesar Augustus LOPEZ, Defendant and Appellant.

No. S064118.

Supreme Court of California

Nov. 2, 1998.

Diane Nichols, under appointment by the Supreme Court, and Stefanie A. Sada, Ventura, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, Warren P. Robinson and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, Justice.

In this case we consider whether the trial court, in instructing the jury on the elements of the charged felony offense of committing a lewd act upon a child under the age of 14 (Pen.Code, § 288, subd. (a)), ¹ erred in failing also to instruct, on its own motion, regarding the misdemeanor offense of child annoyance (§ 647.6, subd. (a)). We conclude, consistent with the Court of Appeal decision below, that child annoyance is not a lesser included offense requiring sua sponte instructions. As we explain, the lesser offense of child annoyance requires commission of an objectively offensive act of annoyance or molestation, an element not necessarily present in the greater offense of committing a subjectively lewd act.

We have taken the following uncontradicted facts in large part from the Court of Appeal decision in this case. Defendant Caesar Augustus Lopez was charged by amended information in count 1 with committing a lewd act on a child under the age of 14 (§ 288, subd. (a)), with enhancement allegations that he kidnapped the victim for purposes of committing a sexual offense (§ 667.8, subd. (b)), in a manner that substantially increased the risk of harm to the victim (§ 667.61, subds. (a), (c)(4), (d)(2)), and in violation of section 207, 208, 209 or 209.5 (§ 667.61, subds. (b), (c), (e)). Count 2 of the amended information charged defendant with possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)). The amended information also charged a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and a prior serious or violent felony conviction within the meaning of section 667, subdivisions (b) through (i).

Defendant pleaded guilty to count 2. The jury convicted him of count 1 and found true the count 1 enhancement allegations. Defendant admitted the truth of the prior serious or violent felony conviction allegations. He was sentenced to state prison for an aggregate term of 61 years to life.

I. THE EVIDENCE

Late one afternoon in 1995, five-year-old Arielle H. visited her friend Vicky at an apartment building in Escondido. While Vicky and Arielle were playing outside the building, defendant approached them, held out a lollipop, and asked, "Hey, little girl, want some candy?" Vicky warned Arielle not to take the candy and not to talk to strangers, but Arielle took the lollipop.

Defendant told Arielle he was going to take her home. (Arielle's testimony was unclear and contradictory on this point: At times she denied that defendant told her he was taking her home, and at other times she claimed he did say that.) She accompanied him. They walked approximately 90 feet, rounded a corner, and walked another 118 feet on a more secluded walkway bordered in part by a block wall and a fence. Defendant then touched Arielle on her vaginal area through her underwear. Vicky saw defendant touching Arielle and thought he was trying to lift her. Vicky grabbed Arielle by the arm and pulled her away from defendant. The girls ran to Vicky's mother and told her what had occurred.

Neighbors detained defendant until police arrived. Police searched him and found two lollipops and a jar of Vaseline. (Detective Claytor testified that child molesters sometimes use lubricants such as Vaseline to masturbate or to allow penetration of younger children.) Defendant had purchased two lollipops and a jar of Vaseline earlier that day at a store two blocks from Vicky's apartment.

Defendant waived his Miranda rights. ² He told police he had gone to the apartment complex to visit a woman and had spoken to a man about renting an apartment. He noticed the two girls and touched the friendlier one. He admitted touching Arielle's vagina through her dress for purposes of sexual gratification. He admitted having sexual fantasies about children.

The next day defendant telephoned a social worker he knew and told her about his involvement in a child molestation. He stated he accepted responsibility for his actions and wanted to go to jail because "it would be safe for him [there]."

A few days later, Detective Claytor contacted defendant, who told Claytor he was worried about reuniting with his family because he feared he might molest someone again. Defendant stated he felt he could not control himself.

The evidence also showed that in 1984 defendant had engaged in similar misconduct involving seven-year-old Taron S., who was playing with friends at a school yard when defendant approached her and asked for her help in locating a missing cat. He walked with her to a kindergarten playground, where he gave her a lollipop. They then walked down an alley, and defendant led her by the wrist to his truck, placed her inside, and drove away. He kept Taron in the truck for a five-hour period, during which he repeatedly molested her. He touched her vagina over her dress, and, after placing Vaseline on his hand, he touched her under her dress. He forced her to touch his penis with her hands and mouth and to masturbate him until he ejaculated. He eventually released her near the school after threatening to hurt her or her family if she said anything about the incident.

II. DISCUSSION

Defendant argues that the trial court was obliged to instruct sua sponte on misdemeanor child annoyance (§ 647.6, subd. (a)) as a lesser included offense of the principal charge of felony lewd conduct (§ 288, subd. (a)). In pertinent part, section 288, subdivision (a), states a felony offense for any person who "willfully and lewdly commits any lewd or lascivious act" on the body of a child under the age of 14, "with the intent of arousing ... the lust, passions, or sexual desires of that person or the child." Section 647.6, subdivision (a) (formerly section 647a), states a misdemeanor offense for every person who "annoys or molests any child under the age of 18."

According to defendant, the jury could have had a reasonable doubt as to whether he entertained a lustful intent when he touched Arielle. He suggests the jury might have believed he was merely trying to "lift" Arielle, as Vicky described, and move her to another location where he could commit the lewd conduct offense. In defendant's view, a properly instructed jury could have found his acts did not amount to lewd conduct under section 288, subdivision (a), but instead constituted acts of annoyance or molestation within the proscriptions of section 647.6, subdivision (a). We conclude that, because section 647.6, subdivision (a), is not a lesser included offense of section 288, subdivision (a), courts need not give instructions on the former offense sua sponte.

A. Sua Sponte Instructions

A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201, 47 Cal.Rptr.2d 569, 906 P.2d 531 (Barton ).) This sua sponte obligation extends to lesser included offenses if the evidence "raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]" (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613; accord, Barton, supra, 12 Cal.4th at pp. 194-195, 47 Cal.Rptr.2d 569, 906 P.2d 531.) As we stated recently, "A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] 'there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser. [Citations]." (People v. Memro (1995) 11 Cal.4th 786, 871, 47 Cal.Rptr.2d 219, 905 P.2d 1305, original italics.)

The requirement that courts give sua sponte instructions on lesser included offenses "is based in the defendant's constitutional right to have the jury determine every material issue presented by the evidence. [Citations]." (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351, 216 Cal.Rptr. 455, 702 P.2d 613.) This sua sponte duty to instruct exists even if the defendant expressly objects to the instruction. (Barton, supra, 12 Cal.4th at p. 195, 47 Cal.Rptr.2d 569, 906 P.2d 531.) As stated in Barton, quoting from an earlier case, " '[A] defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth.' [Citation.]" (Id. at p. 204, 47 Cal.Rptr.2d 569, 906 P.2d 531; see also People v. Birks (1998) 19 Cal.4th 108, 117-120, 77 Cal.Rptr.2d 848, 960 P.2d 1073 [retroactively overruling People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303].)

B. Lesser Included Offenses

To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the "elements" test and the "accusatory pleading" test) must be met. The elements test is satisfied when " 'all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.' [Citation.]" (People v. Anderson (1975) 15 Cal.3d 806, 809-810, 126 Cal.Rptr. 235, 543 P.2d 603, quoting People v. Francis...